All Episodes
Previous Next
Sept. 24, 2010 - Freedomain Radio - Stefan Molyneux
30:01
1753 Drugs in Portugal Part 1

Full article: http://www.cato.org/pub_display.php?pub_id=10080

| Copy link to current segment

Time Text
Drug Decriminalization in Portugal Lessons for Creating Fair and Successful Drug Policies by Glenn Greenwald of the Cato Institute Executive Summary On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin.
Under the new legal framework, all drugs were decriminalized, not legalized.
Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm.
Drug trafficking continues to be prosecuted as a criminal offense.
While other states in the European Union have developed various forms of de facto decriminalization, whereby substances perceived to be less serious, such as cannabis, rarely lead to criminal prosecution, Portugal remains the only EU member state with a law explicitly declaring drugs to be decriminalized.
Because more than seven years have now elapsed since enactment of Portugal's decriminalization system, there are ample data enabling its efforts to be assessed.
Notably, decriminalization has become increasingly popular in Portugal since 2001.
Except for some far-right politicians, very few domestic political factions are agitating for a repeal of the 2001 law.
And, while there is a widespread perception that bureaucratic changes need to be made to Portugal's decriminalization framework to make it more efficient and effective, There is no real debate about whether drugs should once again be criminalized.
More significantly, none of the nightmare scenarios touted by preenactment decriminalization opponents, from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for drug tourists, has occurred.
The political consensus in favor of decriminalization is unsurprising in the light of the relevant empirical data.
Those data indicate that decriminalization has had no adverse effect on drug usage rates in Portugal, which in numerous categories are now among the lowest in the EU, particularly when compared with states with stringent criminalization regimes.
Although post-decriminalization usage rates have remained roughly the same, or even decreased slightly when compared with other EU states, drug-related pathologies, such as sexually transmitted diseases and deaths due to drug usage, have decreased dramatically.
Drug policy experts attribute those positive trends to the enhanced ability of the Portuguese government to offer treatment programs to its citizens, enhancements made possible, for numerous reasons, by decriminalization.
This report will begin with an examination of the Portuguese decriminalization framework as set forth in law and in terms of how it functions in practice.
Also examined is the political climate in Portugal, both pre- and post-decriminalization with regard to drug policy, and the impetus that led that nation to adopt decriminalization.
The report then assesses Portuguese drug policy in the context of the EU's approach to drugs.
The varying legal frameworks, as well as the overall trend towards liberalisation, are examined to enable a meaningful comparative assessment between Portuguese data and data from other EU states.
The report also sets forth the data concerning drug-related trends in Portugal, both pre- and post-decriminalisation.
The effects of decriminalization in Portugal are examined both in absolute terms and in comparisons with other states that continue to criminalize drugs, particularly within the EU. The data show that judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success.
Within this success lie self-evident lessons that should guide drug policy debates around the world.
Introduction Around the globe, countries approach drug policy in radically different ways.
In communist China and various Muslim nations, drug traffickers and, in some instances, even those found guilty of possession of narcotics, receive draconian prison sentences and are even executed.
At the other end of the policy spectrum, most people think of the Netherlands, which has long been perceived as leading the way in drug liberalization and, at least in Amsterdam, has long maintained a drug-tolerant culture, though it has never legalized drugs.
Most countries, of course, fall somewhere in between.
In the 1980s, the global policy trend was toward harsher criminalization approaches, even at the user level.
In recent years, however, as drug policymakers have attempted to formulate policy recommendations for how best to manage drug-related problems exclusively on empirical grounds, there are signs that countries in every region of the world are reversing course.
This study will focus on one such reversal in Europe, Portugal's dramatic 2001 decriminalization policy.
Decriminalization, Depenalization and Legalization On July 1st, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin.
Since the enactment of that law, Portugal is, and remains, the only European state explicitly to decriminalize drug usage.
This statute, in Article 29, uses the Portuguese word for decriminalization to describe the new legal framework it implements – Decriminalization applies to the purchase, possession and consumption of all drugs for personal use, defined as the average individual quantity sufficient for 10 days' usage for one person.
Even in the decriminalization framework, drug usage and possession remain prohibited, i.e.
illegal, and subject to police intervention.
But decriminalization means that infractions have been removed completely from the framework of the criminal law and criminal justice system.
Instead, they are treated as purely administrative violations to be processed in a non-criminal proceeding.
It is important to distinguish between decriminalization, the de jure scheme enacted by Portugal, And mere depenalization, the prevailing framework in several EU states that have not decriminalized drug usage.
The central agency of the European Union for coordinating drug policy data is the European Monitoring Centre for Drugs and Drug Addiction, and in 2005 that agency promulgated the following definitional distinction between decriminalization and depenalization.
Quote, Decriminalization comprises removal of a conduct or activity from the sphere of criminal law.
Prohibition remains the rule, but sanctions for use and its preparatory acts no longer fall within the framework of the criminal law.
By contrast, depenalization means relation of the penal sanctions provided for by law.
In the case of drugs and cannabis in particular, depenalization generally signifies the elimination of custodial penalties.
In sum, decriminalization means either that only non-criminal sanctions, such as fines or treatment requirements, are imposed, or that no penal sanctions can be.
In a depenalized framework, drug usage remains a criminal offense, but imprisonment is no longer imposed for possession or usage even, as other criminal sanctions, e.g.
fines, police record, probation, remain available.
Legalization, which no EU state has yet adopted, means that there are no prohibitions of any kind under the law on drug manufacturing sales, possession, or usage.
As set forth below, several EU states have developed either formal or de facto forms of depenalization, particularly for personal cannabis usage.
But no EU state, other than Portugal, has explicitly declared drugs to be decriminalized.
Portugal's decriminalization regime.
How it works. The 2001 Portuguese decriminalization statute was enacted to revise the legal framework applicable to the consumption of all narcotics and psychotropic substances together with what the European Monitoring Centre for Drugs and Drug Addiction describes as,
quote,"...the medical and social welfare of the consumers of such substances without medical prescription." The statute's operative decriminalization clause is set forth in Article 2.1, which provides, quote, the consumption, acquisition, and possession for one's own consumption of plants, substances, or preparations listed in the tables referred to in the preceding article constitute an administrative offense, end quote.
The reference preceding article encompasses, quote, narcotics and psychotropic substances, and includes a table of all plants, substances, and preparations that were previously criminalized.
The key phrase, Foreman's own consumption, is defined in Article 2.2 as a quantity not exceeding the quantity required for an average individual consumption during a period of 10 days.
Decriminalization does not apply to drug trafficking, which remains criminalized and is defined as possession of more than the average dose for 10 days of use.
No distinction is made between the types of drug, so-called hard drugs or soft drugs, nor does it matter whether consumption is public or private.
Personal possession and consumption of all narcotics, no matter where they occur or for what purpose, are now decriminalized in Portugal.
As noted, decriminalization is not synonymous with legalization.
Drug usage is still prohibited under the law of Portugal, but it is treated strictly as an administrative, not a criminal, offense.
Thus, Article 15 of the law, entitled Penalties, sets forth the authorized administrative sanctions for violations.
In lieu of criminalization, the Portuguese law in Article 5 establishes, quote, Commissions for dissuasions of drug addiction.
The body solely responsible for adjudicating administrative drug offences and imposing sanctions, if any.
The first section of the law's penalty section, Article 15, provides, quote, non-addicted consumers may be sentenced to payment of a fine or, alternatively, to a non-pecuniary penalty.
Article 17, entitled Other Penalties, provides in Section 1 that, instead of a fine, the Commission may issue a warning.
In theory, offenders can be fined an amount between 25 euros and the minimum national wage.
But such fines are expressly declared to be a last resort.
Indeed, in the absence of evidence of addiction or repeated violations, the imposition of a fine is to be suspended.
While the dissuasion commissars are not authorized to mandate treatment, they can make suspension of sanctions conditioned on the offenders seeking treatment.
This is typically what is done, though in practice there are very few ways to enforce the condition since violations of a commission's rulings are not themselves infractions of any law.
In fact, dissuasion commissions are directed by Article 11.2 to, quote,"...provisionally suspend proceedings." Meaning to impose no sanctions, where an alleged offender with no prior offences is found to be an addict but agrees to undergo treatment.
Where the offender is deemed to be a non-addicted consumer of drugs and has no prior offences, the commissions are mandated by Article 11 of the Decriminalization Law to provisionally suspend proceedings, whereby no sanction is imposed.
Article 11.3 vests the commissions with discretion to provisionally suspend proceedings, even for an addict who has a prior record, provided he or she agrees to undergo treatment.
Alternatively, under Article 14, a commission, in the case of an addict with a prior record, can impose sanctions, but then immediately suspend them contingent upon ongoing treatment.
In the event that treatment is completed and there is no subsequent offense, the proceeding will be deemed closed after a specified time period.
In theory, the dissuasion commissions are able to impose on offenders found to be addicts a wider range of sanctions under Article 17, including suspension of the right to practice a licensed profession, doctor,
lawyer, taxi driver, A ban on visiting high-risk locales, nightclubs, a ban on associating with specified individuals, requiring periodic reports to the Commission to show there is no ongoing addiction or abuse, prohibitions on travel abroad, termination of public benefits for subsidies or allowances, or a mere oral warning.
Article 15.4 sets forth a variety of factors the commissions should consider in determining what sanction, if any, should be imposed.
Such factors include the seriousness of the act, the type of drug consumed, whether consumption was public or private, and whether usage is occasional or habitual.
The commissions are vested with the sole discretion to determine the extent to which these factors should be considered and how they should determine the appropriate disposition of cases.
Minors who are cited for drug possession or usage enter the same process and pursuant to Article 3 are aided by a legal representative who is authorized to make decisions for the minor.
But furnishing drugs to a minor, or people with mental illness, continues to be forbidden by the general law that regulates drug issues and is considered an aggravating circumstance to the ongoing prohibition on trafficking and other illicit activities, which is punishable by imprisonment of between 4 to which is punishable by imprisonment of between 4 to 12 years.
Decriminalization in Practice Pursuant to the 2001 law, each of the 18 administrative districts in Portugal established at least one dissuasion commission to oversee the administrative process for those cited for drug usage or possession.
Large districts, such as the one encompassing Lisbon, have more than one As provided for by Article 7 of the decriminalization law, each commission consists of three members, one who is appointed by the Ministry of Justice, and the other two members appointed jointly by the Minister of Health and the government's Coordinator of Drug Policy.
The member appointed by the Ministry of Justice will have a legal background, while at least one of the other two members, usually both, will have a medical or social services background, physician, psychologist, social worker.
Even in the decriminalization framework, police officers who observe drug use or possession are required to issue citations to the offender, but they are not permitted to make an arrest.
The citation is sent to the commission, and the administrative process will then commence.
The cited offender appears before the commission within 72 hours of the citation's issuance.
If the commission finds compelling evidence of drug trafficking, it will refer the case to criminal court.
The effect that the decriminalization regime has had on police conduct with regard to drug users is unclear, and is the source of some debate among Portuguese drug policy experts.
There are, to be sure, some police officers who largely refrain from issuing citations to drug users on the grounds of perceived futility, as they often observe the cited user on the street once again using drugs.
Leading such officers to conclude that the issuance of citations without arrests or the threat of criminal prosecution is worthless.
Thank you.
Other police officers, however, are more inclined to act when they see drug usage now than they were before decriminalization as they believe that the treatment options offered to such users are far more effective than turning users into criminals who, even under the criminalization scheme, were typically back on the street the next day but without real treatment options.
One 2007 paper contended, quote, The law enforcement sector was seen as supportive of the reform, particularly because they perceived decriminalization and referral to education and treatment as offering a better response to drug users than under the previous legislative approach.
Key informants asserted law enforcement have embraced the more preventative role for drug users.
Some Portuguese drug officials believe this dichotomized reaction among police officers to be split largely along generational lines.
Older officers are inclined to believe that the decriminalization scheme makes issuing citations a waste of their time, whereas younger officers view the administrative process as the best hope for containing addiction.
The inability to quantify negative events, that is, officers who refrain from issuing citations on the grounds of perceived futility, What is clear is that Without proving that officers are issuing citations at least at the same rates,
if not more enthusiastically, than when the law was first enacted.
In theory, under Article 3 of the decriminalization law, both private and government physicians are permitted to notify the dissuasion commissions if they have reason to suspect drug use in their patients.
In reality, however, such reporting is extremely rare for several reasons, including the widespread belief among physicians that such reporting violates doctor-patient confidentiality.
As noted, the decriminalization law sets forth numerous criteria that dissuasion commissions are to consider in determining the proper disposition of each case.
Article 10 of the decriminalization law directs the commission to hear from the alleged offender and to gather the information needed in order to reach a judgment as to whether he or she is an addict or not, what substances were consumed, the circumstances in which he was consuming drugs when summoned, the place of consumption and his economic situation.
Which of these are to be weighed and the weight they are to receive are left to the sole discretion of the Commission members.
The alleged offender has the right to request that a therapist of his choice take part in the proceedings and or that a medical examination be conducted to aid in determining the various factors the Commission might consider.
Portuguese and European officials familiar with the dissuasion commission process emphasize that the overriding goal of that process is to avoid the stigma that arises from criminal proceedings.
Each step of the process is structured so as to de-emphasize, or even eliminate, any notion of guilt from drug usage, and instead to emphasize the health and treatment aspects of the process.
The alleged offender, for instance, can request that notice of the proceedings not be sent to his home in order to preserve privacy.
Commission members deliberately avoid all trappings of judges and the hearing is intentionally structured so as to avoid the appearance of a court.
Members dress informally.
The alleged offender sits on the same level as the commission members rather than having the members sit on an elevated platform.
Commission members are legally bound to maintain the complete confidentiality of all proceedings.
At all times, respect for the alleged offender is emphasized.
In determining what, if any, sanction should be imposed, the Commission often takes account of the seriousness of the drug that was used.
The EMCDDA identifies the probable sanction for possession of cannabis as suspension of sanction with probation.
In 2005, there were 3,192 commission rulings.
Of those, 80% suspended the proceeding, 15% imposed actual sanctions, and 2.5% resulted in absolution.
That distribution has remained constant since the law's enactment.
Of the cases where sanctions were imposed the overwhelming majority merely required the offenders to report periodically to designated locales.
Cannabis continues to be the substance for which the greatest percentage of drug offenders are cited.
The percentages for the other substances remain roughly the same.
Before the enactment of the decriminalization law, opponents insisted that the proposed change in law would make Portugal a center of so-called drug tourism.
Paulo Portas, leader of the Conservative Popular Party, said, There will be plane loads of students heading for Portugal to smoke marijuana and take a lot worse, knowing we won't put them in jail.
We promise sun, beaches, and any drug you like.
Such fears have turned out to be completely...
Unfounded. Roughly 95% of those cited for drug offenses every year since decriminalization have been Portuguese.
Close to zero have been citizens of other EU states.
Political Climate in Portugal Pre- and Post-Decriminalization Put another way,
decriminalization was driven not...
By the perception that drug abuse was an insignificant problem, but rather by the consensus view that it was a highly significant problem, that criminalization was exacerbating the problem, and that only decriminalization could enable an effective government response.
In fact, Portuguese decriminalization occurred only after extensive study by an elite commission, the Commission for a National Anti-Drug Strategy.
That commission was created, quote, in response to a rapidly rising drug problem in the 1990s, principally but not exclusively involving heroin use.
Notably, the 2001 change to the Portuguese legal framework was intended to implement, quote, a strong harm-reductionistic orientation, and, quote, the flagship of these laws is the decriminalization of the use and possession for use of drugs.
In its 1998 report, the Portuguese Commission ultimately recommended decriminalization as the optimal strategy for combating Portugal's growing abuse and addiction problems.
The Commission emphasized that the objective of its decriminalization strategy was to reduce drug abuse and usage.
Thus, as its report stated, its recommendations were intended to redirect the focus to primary prevention, Extend and improve the quality and response capacity of the healthcare networks for drug addicts so as to ensure access to treatment for all drug addicts who seek treatment.
And guarantee the necessary mechanisms to allow the enforcement by competent bodies of measures such as voluntary treatment of drug addicts as an alternative to prison sentences.
The Commission concluded that legalization, as opposed to mere decriminalization, was not a viable option, due in large part to the fact that numerous international treaties impose the obligation to establish in domestic law a prohibition on drug use.
Decriminalization was consistent with that obligation, as Portuguese law continued to prohibit usage, but simply no longer classified violations as a criminal offense.
Following issuance of the Commission's report, the Federal Government's Council of Ministers, in 1999, approved the Commission's report almost in its entirety.
In 2000, the Council produced its own policy recommendations, which were consistent with the Commission's, including recommending full-scale decriminalisation.
With both the Expert Commission and the Government's Council agreeing on the need for a harm reduction approach generally, and decriminalization specifically, the proposal encountered relatively little political resistance.
Thereafter, in October 2000, the Portuguese Parliament, supported by the National President, enacted legislation implementing the Council's recommendations in full, and decriminalization took effect on July 1, 2001.
Interviews with Portuguese drug officials confirmed that before decriminalization, the most substantial barrier to offering treatment to the addict population was the addict's fear of government officials as a result of criminalization.
The chairman of Portugal's principal drug policy agency, The Institute on Drugs and Drug Addiction emphasized that before the 2001 decriminalization law, his principal challenge was drug addicts' fear of seeking treatment, particularly from the state agencies offering it, because they were afraid of being arrested and prosecuted.
One prime rationale for decriminalization was that it would break down that barrier, enabling effective treatment options to be offered to addicts once they no longer feared prosecution.
Moreover, decriminalization freed up resources that could be channeled into treatment and other harm reduction programs.
A related rationale for decriminalization was that removal of the stigma attached to criminal prosecution for drug usage would eliminate a key barrier for those wishing to seek treatment.
Even in those nations where drug users are not typically punished with prison, such as Spain, the stigma and burden of being convicted of a criminal offense remain.
Quote, It is this stigmatization that the Portuguese policy explicitly aims to prevent.
Even before decriminalization, prosecution, and certainly imprisonment for mere possession or use were rare, but not unheard of.
At times, the use of the criminal process against those accused solely of usage approached the levels of those accused of trafficking.
The citizenry's fear of being identified as a user was thus immense, and the stigma attached to such accusations was substantial, even in the absence of a prison sentence.
Indeed, interviews with Portuguese political officials and drug policy experts confirm that they did not embrace decriminalization despite their belief that it would lead to increased usage.
Rather, they embraced decriminalization as the best option for minimizing all drug-related problems, including addiction.
including addiction.
Quote, Decriminalization is not expected to increase the amount of drugs available or the use of new types of drugs.
Quote, Decriminalization is not expected to increase the amount of drugs available or the use of new types of drugs.
However, there is a general belief that decriminalization increases the need for prevention, for example, to communicate to the public that decriminalization does not condone drug use.
There is a consensus that decriminalization, by destigmatizing drug use, will bring a higher proportion of users into treatment, thereby increasing the need for treatment.
Put another way, Portuguese decriminalization was never seen as a concession to the inevitability To the contrary, it was, and is, seen as the most effective government policy for reducing addiction and its accompanying harms.
For that reason, the National Plan Against Drugs and Drug Addictions for 2005-2012, prepared in 2004, centers on ongoing strategies for prevention, demand reduction and harm reduction, as well as maximizing treatment resources and availability for those who seek it.
The Institute on Drugs and Drug Addiction remains the leading agency in Portugal for overseeing drug policy.
It continues to define its core mission and the core purpose of the decriminalization law as follows.
This law reinforces the resources in the context of demand reduction by sending to treatment drug addicts and includes those that are not addicts but need a specialized intervention.
▲
Export Selection